Join me and this extraordinary panel of experts, Michael D. Armstrong (Viacom), Devin Johnson (Uninterrupted), and panel organizer, Simone Bresi-Ando (I’mPOSSIBLE) at SxSW on Tuesday March 14th at 11 AM: Gentrifying Genius: Urban Creators Stripped Bare.
Black and brown youth are missing out on fruitful and ultimately life changing opportunities and rewards from their intellectual property which remains wildly popular but unpaid and uncredited.
Intellectual Property and Social Media
I will adjust the frame of reference by explaining what intellectual property is, how rights are created, what rights creators control and what they give up when they opt-in to social media platforms, and how creators of color, in particular, can better navigate disparities in what I call the “post-to-profit” pipeline.
This disparity, of course, is not new. Similar misappropriation pervades America’s history with creators of color. In the cinematic suspense phenomenon Get Out, Jordan Peele goes a step further beyond cultural appropriation to examine the ultimate misappropriation of black bodies themselves, genius and all.
This will be a rich, engaging, dynamic conversation. Hope to see you there!
Professor Evans will present her latest work-in-progress, Safer Harbor from Statutory Damages for Mea Culpa Infringers: Remixing the DOC White Paper, at the 2016 Tenth Annual Lutie Lytle Black Women Law Faculty Writing Workshop.
The paper, slated for fall placement, titled “Safer Harbor” from Statutory Damages for Mea Culpa Infringers: Remixing the DOC White Paper, is a follow up to her article, Safe Harbor for Innocent Infringers in the 21st Century. The former article argued that under certain circumstances, “innocent” users should be protected from liability in the same way that Internet Service Providers are protected under the Digital Millennium Copyright Act’s safe harbor provisions. In Safer Harbor, Professor Evans approaches the same topic from the damages-instead of the liability-phase.
In Safer Harbor, Professor Evans offers a legislative fix to the statutory damages section that would inject greater balance, fairness and uniformity into the damages assessment.
In light the IPTF Report, Professor Evans analyzes and incorporates the Report’s findings and recommendations against the backdrop of her own recommended fixes to copyright law.
About the Lutie Lytle Conference
The Lutie A. Lytle Black Women Law Faculty Writing Workshop (the “Lytle Workshop”) is an annual gathering of current and aspiring black women law faculty. While the primary focus is on legal scholarship, this event is important for networking, bonding, and getting refreshed. Read more about the History of the Program. Since the Workshop began, its participants have published more than 29 books, 44 book chapters, and 500 articles (bibliography of works authored by workshop attendees as of 2016).
The 2016 gathering, which will be the historic and commemorative 10thAnnual Workshop, will be hosted by the University of Iowa College of Law on July 7-10, 2016, in Iowa City. A writing retreat will take place before and after the main Workshop on July 6-7 and 10-12, 2016. [More information …]
Video site will defend strong examples of fair use against copyright claims, saying creators can be ‘intimidated’ by the effort required to defend their rights YouTube will go to court to defend filmmakers wrongly accused of copyright infringement, the site has announced.
It will now offer legal support to “a handful of videos” which Google (YouTube’s parent company) believes represent “clear fair uses”. It will also feature them in a special section of the site dedicated to showcasing strong examples of fair use.
Telling users how to strip the DRM from their legally purchased ebooks is not contributory copyright infringement, according to a ruling last month by a federal judge in New York. Judge Denise Cote dismissed two publishers’ claims of contributory infringement and inducement inAbbey House Media v. Apple Inc., one of the many cases to come out of the antitrust litigation against Apple and a handful of major publishers.
The CAS is a much-anticipated [or dreaded] new anti-piracy plan called the “Six Strikes” Copyright Alert System Program. It aims to thwart large-scale piracy of copyrighted works on the Internet. The CAS is the Internet Service Providers’ industry-response to concerns about secondary liability for alleged copyright infringement and piracy committed on their networks.
“Starting next week, we will begin taking into account a new signal in our rankings: the number of valid copyright removal notices we receive for any given site,” said Google SVP of engineering Amit Singhal in a blog post. He went on to say, “Sites with high numbers of removal notices may appear lower in our results.”
The system works by sending a series of up to six copyright alerts to account holders who are accused of copyright infringement. The first four or five alerts are warnings but on the fifth or six alert, depending on if the ISP waived taking action on the fifth alert, various mitigation measures are implemented including limiting download speed and halting access until the customer contacts the ISP.
At no point in this process is the customer information given to the complaining copyright holder and there is an appeals process. However, the appeals process does come with a $35 fee that can be waived.
In contrast to “three strikes” laws passed in France and New Zealand, the U.S. system is far more tame with many more warnings and far gentler mitigation measures. However, that hasn’t helped the U.S. agreement, which was created as a framework and without legislation, avoid controversy.
Some have called the new system a form of “railroading” and others have said it is turning the ISPs into “copyright cops“. Many have wondered why, after years of holding fast to their position that they didn’t have to police their networks, ISPs agreed to this plan.
More importantly though, others are wondering what the system means for them, either as a copyright holder or an occasional downloader. The answers to all the questions are a bit complex but can be pretty easily explained to anyone who is willing to take a closer look.
The Aligning of the Stars
Though many commentators have expressed surprise at this agreement, the truth is that this has been a long time coming. The stars for this kind of framework have been aligning for some time, well before it was leaked they were negotiating such a deal.
While copyright holders have every motivation to seek such a deal, ISPs, it seemed, did not. Not only did the DMCA protect them from any liability, but they risked angering customers by taking any action.
However, the situation is not that straightforward and, over the past few years, ISPs have been put in a precarious position on this front. Consider the following issues:
Bandwidth Issues: Bandwidth is becoming a growing issue for ISPs due to increased consumption of both legitimate and illegal content. Dedicated pirates are often times the biggest downloaders and, sometimes, aren’t even customers but are instead riding on a neighbor’s wifi. There was talk even just a few weeks ago on this issue nudging ISPs to take action on piracy.
Conflicts of Interest:With Comcast buying NBC, you have many ISPs getting into the content business and sitting, literally, at both sides of the table. The line between distribution and content creation is not clearly defined, especially in light of partnerships the two sides have to deliver bundled services.
Government Pressure: Finally, in light of tougher laws being passed in other nations, the U.S. government, in particular the White House, has been putting pressure on ISPs to come up with a deal. For an industry that strongly fears regulation, this was likely a very powerful motivator.
In short, the two sides need each other (or are already one and the same) and the shadow of government intervention was all that it took to push the process along.
For example, if you’re a smaller copyright holder or otherwise not part of this agreement, you won’t be able to send any alerts and, if you don’t pirate content, you most likely will never see one, unless your wifi is being misused.
Even if you’re a casual music or movie downloader, this agreement probably won’t drastically impact you. In fact, some even feel it could help you by giving you plenty of warnings and helping you avoid a lawsuit.
This effort is generally targeted more at diehard pirates and, even then, it is far more aimed at education and not enforcement. The mitigation steps are tame compared to those in other countries and the long series of warnings is more geared toward informing the user about the problem than threatening them.
In short, only a handful of very active pirates will likely be on the receiving end of any mitigation measures and those that do will get there more because of stupidity than the actual act. After all, who would continue doing the same thing after four or five warnings?
The real change, most likely, is yet to come. Simply put, it seems unlikely that this framework is going to be the end of the relationship between ISPs and content creators and that could have a big impact on the Web down the road.
Looking Ahead to a Different Future
The real change with this agreement isn’t the number of strikes or the mitigation measures but that it happened at all. After all, other nations that have implemented such “graduated response” systems did so either through court decisions or legislation, not voluntary agreement.
In short, the most amazing thing to come out of this could very well be the Center for Copyright Information, the organization that is overseeing this effort and was founded jointly by ISPs and copyright holders.
If the parties involved can make this agreement work over the long-term, it could be a huge shift for the Internet in the U.S. This is especially important in the copyright landscape because, in many ways, this agreement is already out of date.
After all, with piracy already shifting away from easily-monitored p2p networks and toward file locker and streaming services, a trend that began as early as 2005, and it is likely that trend will only continue for a long time to come.
In short, this, in many ways, is a piracy agreement that is about five or six years too late to be on the curve. However, if it holds, it could open the doors for future agreements, which could be far more drastic and have a broader impact.
While the pact seems to be somewhat tenuous now, the external factors that brought it into existence are only going to grow in strength over the next few years, possibly driving these two sides even closer together.
That, in turn, will make future agreements easier to draft and could make them much more far-reaching. A prospect that dramatically alter the Web itself.
All in all, this specific agreement isn’t likely to have a drastic impact on anyone that isn’t already a part of the agreement. However, the fact that it exists, the factors that helped to make it happen and the current climate online means that there is a good chance this won’t be the last we hear of this partnership.
In short, rather than worrying about or pondering over the specifics of this deal, it’s more important to look at the fact it exists at all and what it means for the future of the Web.
After all, if the ISPs are either the same companies or closely aligned with the largest copyright stakeholders it will inevitably impact the Web in other ways. It just remains to be seen exactly how.